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  • Whether the Doctrine of Informed Consent is Rhetoric:Understanding Autonomy and Informed Consent in the Indian Context
  • Vibhav Mithal (bio)


“Every human being of adult years and sound mind has a right to determine what shall be done with his body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages …”

—Cardozo J in Mary E Schloendorff v. Society of New York Hospital [211 N.Y. 128, 105 N.E. 93]

The Scholendorff case is one of the earlier judgements1 on informed consent and the statement made by Cardozo J is considered to be critical to the development of the legal doctrine.2 The statement talks about patient sovereignty3 and a patient’s right to self-determination.4, 5 The roots of the doctrine of informed consent are found in the principle of bodily autonomy which implies that a patient shall have the exclusive right of self-determination as to what shall be done with his body.6 It refers to the duty of the doctor to disclose to the patient any facts which are necessary to form the basis of an intelligent consent7 by the patient to the proposed treatment.8 However during such disclosure when discussing the element of risk, a certain amount of discretion can be exercised.9

So, even though a patient can make an intelligent decision based on the facts given to him, doctors are empowered to withhold some information through the exercise of discretion. If information is withheld, then that goes [End Page 39] against the principle of autonomy. Autonomy is considered to be root of the doctrine of informed consent. So is withholding information from patients actually consistent with the doctrine of informed consent? How much information should be given to them? The amount of information to be disclosed to the patient has led to a lot of debate.

In this article, I explore whether patient autonomy actually exists when a patient gives his informed consent or whether the entire doctrine is mere rhetoric. To answer the question, the present article shall be divided into three parts and a conclusion.

The first part shall lay down a theoretical understanding of autonomy. The second part of the article shall deal with case laws of Indian and Foreign jurisdiction on informed consent. This section shall highlight the debate that exists with respect to disclosure of information. The final part of the article shall explore which of the concepts of autonomy laid down in Part 1 applies in the Indian context. In the conclusion, I analyse whether the doctrine of informed consent is mere rhetoric or a reality.

Understanding Autonomy10

Individual Autonomy:

The traditional understanding of autonomy in medical law is linked to bodily integrity.11 Bodily integrity implies that the individual is the complete master of his own body and shall decide what is best for him even if in others’ perceptions what he is doing is damaging to him.12 Thus the individual patient is considered to have the ultimate right to control his body and what is to be done to it.13 And this control is exercised either through consenting to or refusing a medical treatment.14 This understanding of autonomy is termed as individual autonomy as in this individual has the legal capacity15 to take independent decisions and actions.16 An individual has legal capacity when he completely understands the medical treatment he is about to undergo and based on that understanding he takes an independent decision. An independent decision implies that the patient is not under any sort of influence and that there is complete voluntariness in taking that decision.

Principled Autonomy — Kant’s Theory:

Kant defines autonomy as selfdetermination.17 Unlike individual autonomy, in Kant’s concept of autonomy individuals are not allowed to act in whatever manner they see fit.18 Individuals are to act in accordance with practical principles of will.19

Understanding this will is crucial for understanding Kant’s theory of autonomy as it shall highlight that his theory is built on obligation and not [End Page 40] merely rights. According to Kant, if someone does the...


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pp. 39-54
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Archived 2017
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